JUDGMENT Muneshwari Sahay, J. The petitioner was tried before the Judicial Magistrate, Second Class, Purnea for offences under sections 379 and 186 of the Indian Penal Code. He was convicted under section 379 Indian Penal Code an d was sentenced to undergo rigorous imprisonment for a period of three months. He was also found guilty under section 186 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of two months. On appeal, the learned 5th, Additional Sessions Judge confirmed the conviction and sentences imposed against the petitioner. I must point out that both the courts below have erred on the question of sentence in as much as they have not dealt with the case of the petitioner under section 360 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). The trial court had found the petitioner guilty on the 29th November, 1975 and it was imperative on its part to have dealt with the case of the petitioner under the aforesaid section. If for any reason it felt that the petitioner could not be dealt with under section 360 of the Code or under the Probation of offender's Act, it was essential for it, regard being had to the provisions of section 361 of the Code, to record its reasons for not doing so. Neither the trial court, nor the appellate court has given any reasons for not dealing with the case of the petitioner under section 360 of the Code. 2. The learned counsel for the petitioner has assailed the very conviction of the petitioner in this case and, therefore, I shall briefly state the facts on which the petitioner was found guilty. It was said that for realisation of Government dues amounting to Rs. 169.12 P. a distress warrant was issued against one Sheonarain Rai, brother of the petitioner. The Circle Officer had gone to the village of the petitioner to execute the distress warrant with some other Government employees. The prosecution alleged that the certificate-debtor, namely Sheonarain Rai was not found at his residence and in his absence two bullocks belonging to him were seized by the Circle Inspector. When, however, the party proceeded with the seized bullocks, the petitioner is alleged to have arrived there with a lathi and threatened them from removing the cattle. The prosecution alleged that the certificate-debtor, namely Sheonarain Rai was not found at his residence and in his absence two bullocks belonging to him were seized by the Circle Inspector. When, however, the party proceeded with the seized bullocks, the petitioner is alleged to have arrived there with a lathi and threatened them from removing the cattle. Out of fear, the party of the Circle Inspector left the place leaving alone the bullocks which had been seized. 3. The learned counsel for the petitioner has contended that the prosecution had not proved in this case that the seizure of the bullocks had been done under any authority of law. The distress warrant in whose execution the bullocks were alleged to have been seized was not produced before the trial court. Therefore, it could not be ascertained if the Officer who had signed distress warrant had any authority to do so, if the distress warrant had been executed within the time allowed under the warrant and if it was otherwise legal. In absence of the distress warrant the very authority of the Circle Inspector to seize the cattle was wanting in this case and once it was held that the seizure was made without any authority of law, there was no question of the petitioner having committed any offence either under section 186 Or 379 of the Indian Penal Code. Learned counsel submits further that the trial court was in error in holding that although the cattle might not have been actually seized, technically it had to be held that the cattle had actually been seized. Certain errors of record in the observation of the appellate court are also pointed out in this connection. It may be pointed out that the defence had challenged the very fact that the cattle had been actually seized by the Circle Inspector. The learned Additional sessions Judge observed in his judgment that P.W. 2 had stated in his evidence that when he went to untie the cattle jhanjhat took place and, therefore, the cattles were not untied. The learned judge went on to observe that the other witnesses bad, however, said that the cattle was forcibly taken away after they were taken by the party of the Circle Inspector to some distance. This was a serious error of record which the learned Additional Sessions Judge had committed. The learned judge went on to observe that the other witnesses bad, however, said that the cattle was forcibly taken away after they were taken by the party of the Circle Inspector to some distance. This was a serious error of record which the learned Additional Sessions Judge had committed. The Circle Inspector himself as P. W. 4 bas stated in his very examination-in-chief that be had asked the Chairman Nagendra Rai (P.W.2) to untie the cattle and at that very moment the petitioner arrived there with a lathi and threatened the party of the Circle Inspector. Therefore, even according to the evidence of the Circle Inspector the cattle had not been untied. P.W.2 bad stated this in categorical terms in his cross-examination. He stated that even before the cattle had been untied trouble arose and the cattle could not be untied. Therefore, factually in the evidence there remains no doubt that the cattle had not been seized in execution of the distress v. arrant. I may refer in this connection to rule 13 of the Rules in Schedule 2 of the Bihar and Orissa Public Demands Recovery Act. Rule 13 provides inter alia that where the property to be attached is immoveable property (other than agricultural produce) in the possession of the certificate debtor, the attachment shall be made by actual seizure. Therefore, so long the cattle had not been actually seized, it could not be said that the distress warrant had been executed and if the cattle had not been seized, there was no question of the petitioner committing any offence• under section 379 of the Indian Penal Code. 4. On the facts of this case, in my opinion, no offence under section 186 was also made out against the petitioner. I may point out that the prosecution had failed to prove the distress warrant under whose authority the cattle was sought to be seized. Therefore, in absence of any evidence that the cattles were sought to be seized in execution of a valid distress warrant, no offence under section 186 could be made out even if any obstruction was made to the execution of the warrant. Therefore, in absence of any evidence that the cattles were sought to be seized in execution of a valid distress warrant, no offence under section 186 could be made out even if any obstruction was made to the execution of the warrant. Learned counsel for the petitioner has also referred me to section 18 (1) (b) of the Bihar and Orissa Public Demands Recovery Act, and has pointed out that such cattle of the certificate-debtor which in the opinion of the certificate Officer were necessary to enable him to earn his livelihood are exempted from attachment. It is not disputed that the certificate-debtor was an agricultural and the cattle were used for agricultural purposes. The learned Additional Sessions Judge has rejected this plea of the petitioner on the ground that as some other cattles were also tied in the cattleshed of the certificate debtor it could not be said that these cattle were necessary for the certificate debtor to earn his livelihood. In my opinion, this reason was erroneous and the bullocks of the certificate-debtor which were used in agricultural operation could not be lawfully seized in execution of the distress warrant issued under the Bihar and Orissa Public Demands Recovery Act. Therefore, feel no hesitation in saying that the offence under section 186 was also not made out against the petitioner. For the reasons which I have given above, the petition is allowed, the conviction and sentences imposed against the petitioner are set aside and be is acquitted of both the charges. Application allowed.